State v. Peck

536 S.W.2d 511, 1976 Mo. App. LEXIS 2424

• Court: Missouri Court of Appeals
• Decided: April 21, 1976
• Docket: No. 10275
• Status: Published

Opinion

BILLINGS, Chief Judge.

A Greene County jury found the defendant guilty of burglary in its verdict of November 14, 1975. No motion for new trial was filed within the 10-day period after the verdict and the trial court did not enter an order extending the time for filing such motion. Rule 27.20, V.A.M.R.

Thirty-nine days after the verdict the defendant filed “Motion for Judgment of Acquittal or In The Alternative For New Trial.” The motion was overruled the same day, December 23, 1975, and the defendant was granted allocution and sentence and judgment rendered.

On December 31, 1975, a notice of appeal by the defendant was filed with the Circuit Clerk of Greene County, but without the required docket fee. Defendant on January 21, 1976, filed a motion with the trial court requesting he be permitted to appeal as a poor person and his motion was sustained. The notice of appeal and a copy of the court’s order of January 21, 1976, was received in this Court on February 5, 1976.

The concluding sentence of Rule 81.04, V.A.M.R., states: “No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.” Without payment of the docket fee or an order of court waiving the same, there can be no valid filing of a notice of appeal. State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975).

The defendant had 10 days after judgment was entered on December 23, 1975, to timely file a valid notice of appeal. “This notice of appeal was not timely filed because the docket fee, without which the notice of appeal is ineffective, was not deposited with the circuit clerk within ten days after the (judgment] became final; therefore we do not have jurisdiction of the appeal.” State v. Brookshire, 400 S.W.2d 61 (Mo.1966).

The appeal is dismissed.

All concur.